2017 (9) TMI 501

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.... authority were mainly on demand on interest and penalty. She argued that on merits also the credit is admissible. She pointed out that the Commissioner (Appeals) has refused to go into the admissibility of Cenvat Credit as the said issue was not raised before the original adjudicating authority. She further argued that penalty has been imposed under Rule 15 of the Cenvat Credit Rules. She argued that penalty in these circumstances is harsh as they have reversed the credit. She further argued that they had reversed the credit without utilizing the same, however on being asked she could not provide any proof of the said claim. 3. Ld. AR relies on the impugned order. 4. I have gone through the rival submissions. I find that notice was issue....

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....d that a non-taxable item is taxed or a permissible deduction is denied, we do not see any reason why the assessee should be prevented from raising that question before the tribunal for the first time, so long as the relevant facts are on record in respect of that item. We do not see any reason to restrict the power of the Tribunal under Section 254 only to decide the grounds which arise from the order of the Commissioner of Income-tax (Appeals). Both the assessee as well as the Department have a right to file an appeal/cross-objections before the Tribunal. We fail to see why the Tribunal should be prevented from considering questions of law arising in assessment proceedings although not raised earlier. 6. In the case of Jute Corporation o....

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....oo narrow a view of the powers of the Appellate Tribunal [vide, e.g., C.I.T. v. Anand Prasad (1981) - 128 ITR 388 (Delhi), C.I.T. v. Karamchand Premchand P. Ltd. - (1969) 74 ITR 254 (Guj.) and C.I.T. v. Cellulose Products of India Ltd. - (1985) 151 ITR 499 (Guj.) (FB)]. Undoubtedly, the Tribunal will have the discretion to allow or not allow a new ground to be raised. But where the Tribunal is only required to consider a question of law arising from the facts which are on record in the assessment proceedings we fail to see why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee. 7. We find that the Commissioner (Appeals) has relied o....